Citation Nr: 0419858
Decision Date: 07/22/04 Archive Date: 08/04/04
DOCKET NO. 98-09 120 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to service connection for an acquired
psychiatric disorder, to include post-traumatic stress
disorder (PTSD).
2. Entitlement to service connection for dermatitis.
3. Entitlement to service connection for a disability
manifested by painful joints.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Service
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L.J. Bakke, Counsel
INTRODUCTION
The veteran served on active duty from August 1974 to July
1976. Available service personnel records reflect that the
veteran served in the U.S. Army Reserve from August 1976 to
July 1986. However, while active service is noted for the
years 1977 through 1984, the actual dates of this duty have
not been verified. Dates of reserve service in 1985 are
reported to be from June 8, 1985 to June 22, 1985.
This appeal arises before the Board of Veterans' Appeals
(Board) from rating decisions rendered in May 1994 and
December 1997 by the Department of Veterans Affairs (VA)
Regional Office (RO) in Atlanta, Georgia.
This case has twice been before the Board, in March 1999 and
June 2003. Unfortunately, for reasons explained below, the
Board finds it must again remand the case for further
development.
The veteran testified in August 1998 before the undersigned
Veterans Law Judge, (then member of the Board), who was
designated by the Chairman to conduct the hearings pursuant
to 38 U.S.C.A. § 7102(b) (West 2002). A copy of the hearing
transcript issued following the hearing is of record.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000
(VCAA), 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002).
This law redefined the obligations of VA with respect to the
duty to assist, and imposed on VA certain notification
requirements. The final regulations implementing the VCAA
were published on August 29, 2001, and they apply to most
claims for benefits received by VA on or after November 9,
2000, as well as any claim not decided as of that date.
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).
The Board has reviewed the record and finds that additional
development is necessary before appellate action may be
completed in this case. In this regard, the totality of the
veteran's reserve service has not been verified. In the
present case, the precise dates of the veteran's active duty
for training is crucial because the veteran alleges that his
joint pain is the result of a motor vehicle accident the
veteran sustained while enroute to active duty for training
in 1986. Evidence contemporaneous to this date-private and
VA treatment records; the veteran's claim for service
connection for the residuals of this accident, dated in
December 1986; and VA examination reports, dated in June
1987-corroborate the fact that the veteran was rear-ended by
another vehicle on or about June 20, 1986, and sustained
injury to his back and neck. The veteran further stated that
his Commanding Officer held an investigation into whether
this accident occurred in the line of duty. In addition, the
veteran has averred in statements and testified before the
undersigned Veterans Law Judge that he was treated for
dermatitis and a nervous condition during his active service
at Army hospitals in Germany. Finally, he alleged, also
under oath, that he was exposed to chemicals while on active
duty at Fort McAllister, Georgia.
The Board acknowledges that the RO has made several requests
of the National Personnel Records Center (NPRC) to verify the
veteran's dates of active duty for training.
Notwithstanding, given the nature of the veteran's claim,
another search for these records-to include additional
service personnel records, hospital treatment records, and
administrative findings-must be made.
The Board notes that the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) in Disabled Veterans of
America v. Secretary of Veterans Affairs (DAV v. Sec'y of
VA), 327 F.3d 1339 (Fed. Cir. 2003) invalidated the Board's
ability to cure VCAA deficiencies. Therefore a remand is
required in this appeal so that additional development may be
undertaken in order to fulfill the Department's duty to
assist the appellant with his claim. 38 U.S.C.A. § 5103A
(West 2002); 38 C.F.R. § 3.159 (2003).
Accordingly, and to ensure full compliance with due process
requirements, further appellate consideration will be
deferred and the case is REMANDED to the RO for the following
development:
1. The RO should verify the dates of all
of the veteran's active duty for training
as a reservist with the U.S. Army.
2. The RO should obtain any additional
service medical records from all
identified periods of reserve service,
including any and all active duty for
training. In addition, the RO should
make specific attempts to obtain the
veteran's entire service personnel
record, to include his point capture
sheet, copies of his orders to active
duty for training, and any and all
administrative and legal proceedings
including, specifically, any and all
documentation, report of investigation,
and report of line of duty findings
involving a motor vehicle accident
occurring on or about June 20, 1986 while
the veteran was assigned to the 802nd
Ordnance Company (Ammo), Gainesville, GA
(Detachment in Hatsburg, Mississippi from
1977 to 1979).
In addition, the RO should request the
veteran's pay records for inactive duty
drill pay and active duty for training
pay through the Defense Finance
Accounting System (DFAS) or appropriate
service department pay accounting system,
for his reserve service from August 1976
to July 1986.
The RO should further request hospital
records of treatment accorded the veteran
for his nerves and skin condition during
his active duty while stationed with B
Company, 122nd Maintenance Battalion at
? 97th General Hospital, U.S. Army
Hospital, in Frankfort, Germany
on or about April 1975
? U.S. Army Hospital in Hanua,
Germany from January 1975 to
July 1976
? U.S. Army Hospital in
Fliegerhorst, Germany, in or
about January and September
1975.
Finally, the RO should attempt to verify
the veteran's exposure to chemicals at
Fort McAllister, Georgia during his
active service from August 1974 to July
1976.
3. If the service medical or personnel
records are unavailable, the RO should
use alternative sources to obtain such
records, using the information of record
and any additional information the
veteran may provide. The RO should
consider special follow-up by its
military records specialist and/or
referral of the case for a formal finding
on the unavailability of the service
medical or service personnel records.
See VBA's ADJUDICATION PROCEDURE MANUAL,
M21-1, Part III, chapter 4, paras. 4.28
and 4.29. If necessary, the RO should
request that the veteran augment the
information that he has already provided.
The RO should perform any and all follow
up suggested by NPRC or the service
department, including requesting records
from the U.S. Army Personnel
Administration Center in St. Louis, MO,
as was suggested by the Commanding
Officer of the veteran's reserve unit.
4. The RO should request a copy of the
accident report for the motor vehicle
accident involving the veteran on or
about June 20, 1986 from the Police
Department in Baldwin County, Georgia.
An August 1987 VA examination report
shows that the veteran stated he was
going toward Cornelia, when another
driver hit him from behind. Private
medical records dated in June 1986
reflect that the accident was
investigated by the Baldwin County Police
Department.
If necessary, the RO should request that
the veteran augment the information
concerning this motor vehicle accident
already in the file to enable the search
for records.
5. After receipt of any and all newly
acquired evidence, the RO should again
review the veteran's claims for service
connection for a psychiatric disorder to
include PTSD, dermatitis, and a
disability manifested by painful joints.
If the decision remains in any way
adverse to the veteran, he and his
representative should be furnished with a
supplemental statement of the case, and
with a reasonable period of time within
which to respond.
The case should thereafter be returned to the Board for
further review, as appropriate. The veteran need take no
action until he is so informed. The appellant has the right
to submit additional evidence and argument on the matter or
matters the Board has remanded to the regional office.
Kutscherousky, supra. The Board intimates no opinion as to
the ultimate outcome of this case.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
_________________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).